Sunday, February 28, 2021

On the Separation of Church and State

 

On the Separation of Church and State

February 28, 2021

 

I’m a Christian. Indeed, I’m an ordained Christian. A lot of people today assume, I think, that that means I oppose separation of church and state. After all, vocal Christians among us complain all the time that the state won’t let them do things they want to do, like have public school teachers lead prayer in class or post the Ten Commandments in the local courthouse. We’ll return to those two issues below. Secular critics of religion say Christians are trying to impose a Christian theocracy on the country. Some people see no reason why the state shouldn’t support churches and especially church schools. We’ll return to that issue too. The United Kingdom has an established church, after all, and also has broad religious freedom. Surely all people of faith would like for the state to support their churches even if that meant it had to support other people’s religious institutions too. Well, actually, not all of us would. I’m an ordained Christian, and I believe strongly in the need for and the benefits of separation of church and state both for the state and for the church. That belief is what I want to write about here.

The law on separation of church and state in the United States is grounded in the First Amendment to the US Constitution. That Amendment reads in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The federal courts, most importantly of course the US Supreme Court, have created an extensive body of law grounded in that language that actually goes far beyond Congress passing no law. The law takes the First Amendment to mean basically that church and state must remain separate even though the First Amendment doesn’t use the phrase separation of church and state. The Amendment has two relevant phrases, “no law concerning an establishment of religion” and “or prohibiting the free exercise thereof.” These provisions are know in the law as the establishment clause and the free exercise clause. There is extensive case law on both of them.

With few exceptions, including some very recent ones, the establishment clause has been interpreted to mean that no governmental entity may do anything that amounts to state endorsement or support of a religion or that even in some way favors religious institutions over secular ones. As with any constitutional right, things happen that appear on the surface to violate the establishment clause but that the courts allow. Our currency says “In God We Trust.” Both houses of Congress employ chaplains, usually Christian ones of some sort, and those chaplains say prayers before sessions of Congress. In the 1950s we added the phrase “under God” to the Pledge of Allegiance, and members of Congress recite that Pledge that way all the time. Most basically however, the establishment clause (which along with the free exercise clause applies to the states through the Fourteenth Amendment) means that we have no established religion in the US the way they do in the United Kingdom and some other nations. The Christian right may (wrongly) insist that we are a Christian nation and that the US Constitution somehow expresses Christian values rather than the rationalistic values of the Enlightenment that it actually reflects, but the establishment clause does a pretty good job of keeping governments in this country secular.

Religious schools present an interesting issue under the establishment clause, especially in a charter school system. In such a system a public school district pays people or organizations that have set up and run schools that meet the requirements for public education. Sometimes some of those schools are set up and run by religious institutions, and their curriculum includes religious instruction. The establishment clause would seem to dictate that the public school district may not pay public funds to such a school. But those schools are carrying out the district’s mission of educating children, and the district pays money to other, secular charter schools. Does the district not paying religious charter schools constitute discrimination on the basis of religion or impair the free exercise of religion? It’s a tough question to answer. I believe that public money should not be used to support religion in the form of religious charter schools. The current Supreme Court, dominated by conservatives, is inclined to say that public school districts must pay religious schools the same as it pays secular charter schools.

That example of an issue under the First Amendment raises the free exercise clause of the First Amendment as well as the establishment clause. The basic rule there is that the state may in no way interfere in the beliefs or, except in rare cases that have legal implications, in the internal workings of any religious institution. The state may, however, prohibit actions by a religious institution or by religious people if the state has a sufficiently compelling state interest in doing so. Perhaps an example will help. In 1878 the US Supreme Court decided the case of Reynolds v. US. In that case a state government had outlawed bigamy. Members of the Church of Jesus Christ of Latter Day Saints, popularly known as the Mormons, argued that their religion authorized or even mandated bigamy and that their free exercise rights protected them from prosecution under the anti-bigamy law. The Supreme Court rejected that argument. It found that the state had a compelling state interest in regulating marriage and could therefore outlaw the act of bigamy without interfering with the Mormons’ beliefs. Under the free exercise clause we can believe whatever we want. The state can regulate conduct even if the conduct is grounded in religion if the state has a sufficiently compelling state interest relative to the conduct.

As the example of Reynolds v. US shows, question under the two church-related clauses of the First Amendment often involve a weighing of conflicting interests and values. Doing that can be difficult, but judges, especially federal judges, do it often. The cases in which they must do it are ones in which a judge’s personal beliefs and preferences can play a particularly important role. At the Supreme Court at least those cases are rarely decided unanimously. The establishment clause and the free exercise clause of the First Amendment often give rise to such cases.

One issue that has often raised what many see as a conflict between the establishment clause and the free exercise clause has to do with prayer in public schools. That issue is also one that demonstrates how misunderstood the First Amendment’s religion clauses often are. Conservative Christians frequently complain that the public schools have banned prayer. They complain that public school teachers can’t start a class with prayer. They complain that there are no public prayers at school sporting events or school assemblies. They believe that these rules by the public schools violate their free exercise rights, or perhaps at least the free exercise rights of the teachers.

They’re wrong about that. To understand the issue we must make an important distinction between prayer led by a public school employee  and prayer led by a group of students for students who want to hear or participate in it. Any public school employee leading prayer for a school generally or for any school activity violates the establishment clause. Any public employee leading prayer which others have no choice about hearing constitutes as a matter of law a state endorsement or at least state support for a particular religion in violation of that clause. Even a very general prayer to God that uses no language specific to any particular religion constitutes state endorsement of theism over atheism and is therefore impermissible under the establishment clause. That’s why there is never a prayer over the PA system at sporting events, for example.

It’s an entirely different matter when a group of public school students want to gather voluntarily for prayer. That’s where the free exercise clause comes in. Many public schools actually get this one wrong. They prohibit all prayer on school property. A public school may not, however, stop an individual student from praying nor may it prohibit a group of students from praying as long as what the students do does not disrupt the proper functioning of the school. Students may not leave class to pray, although as I recall when I was in elementary school so many decades ago Catholic students were let out to go to the local Catholic school for a period of religious instruction. We didn’t worry too much about the First Amendment back in those days. When a public school prohibits students from praying on their own in appropriate places at appropriate times it violates those students’ free exercise rights.

A somewhat similar issue that raises both establishment and free exercise issues is the desire of many Christians to post the Ten Commandments in the local courthouse. On its face doing that would violate the establishment clause. The Ten Commandments come from the sacred texts of  two great religions, Judaism and Christianity. Proponents of putting them up in courthouses say that doing so does not violate the establishment clause because the Ten Commandments are just general statements of broad moral principles to which no one can really object. Actually, the Ten Commandments aren’t that at all, but I won’t go into that issue here.[1] The important point for our purposes is that however broad and general the Ten Commandments may be they are religious statements. They come from the sacred scripture of two different religions. They say they come from God. The proper ruling in this case is obvious. The courts have had no trouble prohibiting the display of the Ten Commandments on public property because displaying them constitutes state endorsement of them and thus violates the establishment clause of the First Amendment.

Sometimes proponents of things like prayer led by public school employees or posting the Ten Commandments in the courthouse say, well, nearly everyone in our community is Christian, so where’s the harm in either of those measure? This argument completely misunderstands the purpose and function of our constitutional rights. The Constitution does not establish those rights for the benefit of a majority of a population. It establishes them precisely to protect minorities among the population. This function applies to all of our constitutional rights, but it appears most clearly in connection with the right of free speech. No society needs a constitution to protect anyone’s right to say what is popular and government approved. All societies need a constitution to protect everyone’s right to say what is unpopular or critical of the government. This function of the right of free speech is sometimes expressed in the saying “I disagree with what you say, but I will defend to the death your right to say it.”[2] No one would stop me from saying America is the greatest country on earth. That bromide is very popular among us. Someone might try to stop me from saying that it isn’t the greatest country on earth and enumerating facts to support that statement. A private person could stop me from saying it on private property because that person doing so involves no action of the state. The state cannot stop me from saying it anywhere where I am able to say it because however unpopular what I say might be, the First Amendment guarantees my right to say it and stops any state entity from prohibiting me from saying it. The same principle applies with regard to state support or endorsement of any religion or religious statement. Nearly everyone in a particular community may support the statement and the state’s endorsement of it. The First Amendment isn’t there to protect them in this instance, although it would protect them if they needed protection from the state endorsing or supporting a religion that isn’t theirs. The First Amendment is there to protect those in the society who do not accept religion endorsed or supported by the state and don’t want the state imposing it upon them. That a majority of people may believe or support certain things is irrelevant to an analysis of rights under the First Amendment.

One of the purposes of the establishment clause is actually to facilitate people’s use of the free exercise clause. Any state support for or endorsement of one religion militates against all other religions and against atheism as well. Nations like the United Kingdom with an established  national church may allow broad freedom of religion, but they also may not. Take Russia for example. Unlike its old status under the tsars, the Russian Orthodox Church is not officially established as the Russian national church. The tsar was the head of the church, President Putin isn’t. The Russian Orthodox Church is nonetheless the de facto established national church in Russia. Since the fall of the Soviet Union it has gotten the Russian government to enact laws similar to those in effect under the tsars that give it a privileged position relative to any other church. Those laws make it difficult for any other faith to function in the country, especially if it is a new church start coming from outside the country.

Or take Iran as an even more extreme example. Iran is a Shi’ite Muslim theocracy. The state is officially and aggressively Muslim. The Iranian constitution establishes the state as  a particular type of Islamic state. It also says that Zoroastrians, Jews, and Christians may function in the country, but as a practical matter it is difficult for them to do so. Religions not given the constitutional right to function such as Baha’i are oppressed. The condition of religious freedom in Iran has raised strong concerns with international organizations including the US Commission on International Religious Freedom. That’s what can happen when one faith is established de jure or de facto as the national religion of a country. The First Amendment assures us that that won’t happen here.

Separation of church and state actually fosters the health of the church. To see how true that is just look at what has become of the Christian churches where they receive financial support from the state. In the United Kingdom with its established Anglican Church 8% of the people regularly attend weekly religious services. In Germany, where both Protestant and Catholic churches receive money from the government, the figure is 10%. In the US it’s 36%. In Russia with its de facto established Orthodox Church the figure is 7%, although over seventy years under an aggressively atheistic government no doubt plays a role in keeping that figure low.[3] Clearly establishment and governmental financial support do not lead to healthy churches. We Christians are much better off without them than we would be with them.

Finally, of all people Christians should support separation of church and state and the religious freedom it facilitates. Christianity, when properly understood, is a religion of freedom. In Christ we live in God’s grace and not under any set of rules or laws. We respect the right of every person to believe or not to believe according to their own desires and life circumstances. Faith that results from coercion or even pressure is not true faith. We believe that God calls everyone to a life of faith, but God doesn’t call us to force anyone into faith or into church. Separation of church and state facilitates the freedom and proper functioning of both state and church. May we never lose our commitment to that principle that is so foundational for our nation.

 



[1] For a discussion of the Ten Commandments see Thomas Calnan Sorenson, Liberating the Bible: A Pastor’s Guided Tour for Seeking Christians, Revised Edition, Volume Two, The Old Testament (Briarwood, New York, Coffee Press, 2019), pp. 78-85.

[2] This saying is often attributed to Voltaire. It actually comes from a biographer named Evelyn Beatrice Hall. She wrote it as a paraphrase of what she thought Voltaire would have been thinking.

[3] pewform.org. A student at Moscow State University who I got to know back in Soviet times asked my wife and me if we believed in God. When we said yes, he said that was the one thing he couldn’t understand about westerners. Soviet atheism had done its work in him and in most other Russians.

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